Femi Abegunrin V. The State (2009)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A

This is an appeal against the judgment of G. O. Shoremi (J) (as he then was) at High Court of Justice, Abeokuta, Ogun State delivered on 21st June, 2005, wherein the Appellant was convicted and sentenced to death on the offence of murder contrary to section 319(1) of the Criminal Code Law Cap 29, Laws of Ogun State, 1978.

The brief facts of the case is that on 11th April, 2003 at a restaurant popularly called Super Food Abeokuta, the Appellant and others amounting to between 50-60 members of Eiye Confraternity which is a banned Secret Society, attacked and killed the deceased named Olusegun Oyelaja, by heating him with broken bottle on his head. That the deceased and his blood brother were soaked in their blood at the scene at Super Food restaurant and they started to run going to Ita-Eko and the Appellant and his group followed the deceased and his brother. The deceased was found dead the following day. During the trial of the case, the prosecution called seven witnesses who testified while the Appellant testified in his defence but called no other witness. The learned trial judge considered the totality of evidence and found the Appellant guilty of the offence of murder and accordingly sentenced him to death.

The Appellant being dissatisfied with the conviction, he filed a notice of appeal containing one ground and later with the leave of this court, he was granted on 16th January, 2007 leave to amend his notice of appeal containing (11) eleven grounds. By another application, the Appellant was granted leave to further amend his amended notice of appeal containing only (2) two grounds of appeal, which is now the only relevant notice of appeal. The Appellant has raised two issues for determination and they read thus:-

“1. Whether the prosecution proved its case against the Appellant beyond reasonable doubt to justify the conviction and death sentence passed on him.

2. Whether the learned trial judge gave adequate or any consideration at all to the defence available to the Appellant before conviction for murder and sentenced to death.”

In respect of issue NO.1, learned counsel for the Appellant has contended that out of the three ingredients which are requisite in proving the offence of murder, the prosecution did not establish two ingredients out of the three. Counsel identified the 3 ingredients as follows:-

1. That the deceased died.
2. That the death of the deceased resulted from direct act of the accused and,
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.

The Appellant has contended that the prosecution had submitted at the trial court that there was no direct evidence linking the Appellant to the death of the deceased, and then urged the trial court to infer that what happened at the Super Food continued to Ita-Eko; and that despite this clear admission of the prosecution of the deficiency in its case, the trial judged found as he did at page 57 of the record- “that evidence in this case is not circumstantial but direct,” and held that the death of the deceased has resulted from the injury inflicted on him. Appellant then submitted that, what the trial judge was expected to do under the requirement of the second ingredient to be proved for the charge would be to identify the very act committed by the Appellant which resulted in the said injury that caused death. Counsel referred and relied on the cases of OGURU V. THE STATE; IBE V. THE STATE (1997)1 NWLR (pt. 484) 632; IDEMUDIA V. THE STATE (1999) 7 NWLR (pt. 610) 202; JIRAH V. THE STATE (1996) 4 NWLR (pt. 443) 372, 382. The Appellant also referred to the evidence of PW3, a medical doctor who performed the post mortem examination, did not link the injury to the Appellant and then contend that the evidence of PW3 created doubts which should have been resolved in favour of the Appellant. Counsel for the Appellant is of the view that, it was wrong for the trial judge to rely on Exhibit D, the alleged confessional statement of the Appellant which was resiled during the trial. Appellant has urged this court to hold that the evidence of PW2 is tainted with his guilt because he was the person that started heating the Appellant with broken bottle. In other words, the Appellant is contending that it was PW2 who started the fight that claimed his brother’s life. That PW2 did not report the incidence to the police, but only to his elder brother, PW5 to whom he listed the names of the Appellant, 2nd accused, and Lanre Akanji amongst others. Appellant further submitted that it was very obvious that PW2 knew more than he told the trial court and he lied to save his skin by constantly denying membership of the eye cult and the Mapoly despite the overwhelming evidence against him. That the evidence of PW2 was never corroborated by the Police or prosecutor. That the material and fundamental contradiction in the evidence of PW2 and PW7 as to who was the aggressor, was not resolved at the trial court and that failure should vitiate the trial and the conviction, and relied on the cases of IBE V. THE STATE (supra); NWABUEZE V. THE STATE (1998) 4 NWLR (pt. 86) 16; LADO V. THE STATE (1999) 9 NWLR (pt. 619) 369.

Appellant still contended that it is against the tenets of justice for a trial judge to make use of evidence favourable to the prosecution and reject that which is favourable to the defence, and have urged this court to so hold and set aside the verdict of the trial court and referred to numerous cases among which are UDOH V. THE STATE (1994) 2 NWLR (pt. 329) 666; STATE V. AJIE (2000) 11 NWLR (pt. 678) 443 etc.

Counsel for the Appellant has argued that the people who arrested the Appellant and Lanre Akanji were not called to give evidence to know if they were eye witnesses to the killing or at least to know if they saw anyone who attacked the deceased with a bottle that caused the death, and that there are vital witnesses for the prosecution, and having not called, it leaves a very vital vacuum in the prosecution’s case and relied on the case of ONAH V. THE STATE (1985) 3 NWLR (pt. 12) 236, 341. Counsel is also of the view that the evidence of PW7 and the 2nd accused who were arrested by the same faceless people, is contrary to the position of the prosecution that the Appellant attacked and with a bottle, rather that it was PW2 that attacked the Appellant with a bottle; that also, the evidence of PW5 is a pure hearsay and is totally inadmissible and should be expunged from the record and that it applies to the evidence of PW4 and PW6, being hearsay evidence. In his final argument with relation to issue NO.1, Appellants counsel has contended that the case was shabbily handled by the police in their investigation and that what the prosecution did was a mere suspicion and that no matter how strong the suspicion may be, it will never amount to prove beyond reasonable doubt. That where doubts is created as in the instant appeal, the Appellant is to be discharged and acquitted and counsel has urged this court to so hold.

In his argument on issue NO.2, learned counsel for the appellants has contended that the Appellant has raised the defence of self defence and provocation at the trial court but that the trial judge did not consider the defences at all and then convicted the Appellant. Counsel submitted that it is trite law that no matter how worthless the defence set up by an accused person, the trial court has a duty to consider same dispassionately before dismissing same, and relied on numerous cases such as OGUNYE V. THE STATE (1999) 5 NWLR (pt. 604) 548, OMOHA V. THE STATE (1988) 3 NWLR (pt. 83) 460; LADO V. THE STATE (1999) 9 NWLR (pt. 619) 369 and that the above decisions are in tandem with the provisions of section 36(5) of the 1999 Constitution of Nigeria that says a person is presumed innocent until he is proved guilty. In the instant appeal, the Appellant has referred to pages 18, 12, 13, 23, 36, 38-39, 51 and 52 of the record showing the Appellants defences raised at the lower court, but that the judge did not consider them. Counsel referred to and relied on the author of Archibold-Criminal Pleading and Practice, 2000 Edition, Article 19-44 page 1632 and the case of LAOYE V. THE STATE (1985) 2 NWLR Pt. 10) 832, 844. Counsel for the Appellant has concluded his argument by submitting that the prosecution did not discharge the onus and the trial judge erred in not considering the defences available to the Appellant and that the judgment delivered is perverse and occasioned a miscarriage of justice on the Appellant. Counsel urged this court to so hold and, discharge and acquit the Appellant.

On the part of the Respondent, the issue is simple, whether the prosecution proved its case against the Appellant beyond reasonable doubt. Counsel is of the same view with the argument of the Appellant that to succeed conviction, the prosecution must satisfy the 3 ingredients namely, (i) the deceased died, (ii) that it was the act or omission of the accused which caused the death and (iii) that the accused’s act which caused the death was intentional or with knowledge that death or grievous bodily harm was its probable consequence. Counsel then submitted that PW3, the medical doctor who did the post mortem had stated that the deceased died on 11-04-2003 which means the first ingredient was established. The Respondent is of the view that the 2nd ingredient was established by the evidence of PW2 who was an eye witness when he saw the Appellant heating the head of the deceased with broken bottle. That the evidence of PW2 was corroborated by the evidence of PW3 who proved the cause of death by laceration on the foetal/orbital region on the left eye and fracture on the foetal region of the left eye and another laceration of the chin of the deceased and that PW3 concluded his evidence that the cause of death was intracranial hemorrhage as a result of the head injury. That it was enough that the Appellant was involved in the attack and thus took part in actual killing of the deceased, and referred to the case of OMISADE V. QUEEN (1964) 1 ALL NWR 233.

In regard to the 3rd ingredient, the Respondent is of the view that since the Appellant and his group were the last persons that were seen following PW2 and the deceased, the doctrine of “last seen” which was formulated in EMEKA V. THE STATE (supra) and STATE V. GODWIN (supra) applies to the instant appeal, more so that the evidence of PW7, and PW2 was to the effect that they saw the Appellant and his group who beat the deceased and still followed them to Ita-Eko. That considering the circumstances of this appeal, the Appellant and his colleagues now at large were the last persons seen with the deceased, and that the evidence of PW2 and PW7 pointed irresistibly to the guilty of the Appellant, and referred and relied to the case of UKORAH V. THE STATE (1977) 1 SC 167; ADETOLA V. THE STATE (1992) 4 NWLR (pt. 267); EMEKA V. THE STATE (supra). Counsel for the Respondent has further submitted that, the prosecution led evidence, before the court discharged the burden of proof beyond reasonable doubt and as such, the conviction of the Appellant for the murder of the deceased was justified.

As to the Appellant’s argument that the evidence of PW2 and PW7 were contradictory, learned counsel for the Respondent referred to the respective evidence of PW2 and PW7 respectively and reproduced the relevant parts at pages 10 and 36 of the record and then contended that the prosecution witnesses’ evidence of PW2 and PW7 were never contradictory and that they had established the three ingredients required for proof of murder which was established beyond reasonable doubt

I have carefully considered the arguments of both parties in their Respective briefs. In my considered view, it is necessary for me to consider the appellant’s issue number 2, which is whether the trial judge considered the Appellant’s defence before the conviction. In criminal cases, it is trite that the onus is on the prosecution to establish the committing of the offence beyond reasonable doubt as required by section 138 (1) of the Evidence Act, see also; the numerous cases in IDEMUDIA V.THE STATE (1999) 7 NWLR (pt 610) 202. ESONGBEDO V. THE STATE (1989) 4 NWLR (pt 113) 57; JIRAH V. THE STATE (1996) 4 NWLR (pt 443) 375.